Negotiating Resolution on the 4th of July
I worry sometimes that I write too much in generalities -- praising joint sessions; exploring the social psychological implications of the adversarial system; or arguing with my imaginary detractors - the ones I believe are hectoring me to be more practical. So I have a small practical story to tell you on Independence Day that will lead to some of those generalities I can't resist offering.
It is hour five of a mediated negotiation that has been at impasse all day. After asking some pointedly hard questions of the Plaintiff, I receive this candid response (more or less verbatim): I don't see much point in bullshitting you. I don't know if my litigation strategy will bear fruit or not. My client, however, is genuinely tired of waiting. He is simply unwilling to put off pay day any longer. He believes the Defendant has the money to pay him right now even if he doesn't have the money to pay all of his creditors. He believes Defendant is robbing Peter to pay Paul to keep his business afloat. He's tired of being Peter. He wants to be Paul.
I return to the defense caucus to report the disheartening news that the Plaintiff simply will not budge from the settlement posture he has insisted upon all day. He's not dissembling. He's willing to risk failure if the Defendant follows through on his threatened bankruptcy. He's ready to try the case on the scheduled trial date fewer than thirty days from now.
"What does he think?" asks the Defendant, "that he can get blood from a turnip?"
"No, but he doesn't believe you can't pay him. He thinks you're robbing Peter to pay Paul and he wants to be Paul."
Beat.
Defense counsel gets up, saying "it's clear we can't settle."
Defendant remains firmly in his chair.
Beat.
"Are you coming?" asks counsel, standing with one hand on the conference room door.
Beat.
"I think your client may want to have a conversation with you," I say, as defendant turns to me and says I can pay half of what's owed within thirty days and the remainder within sixty, all secured by the stipulated judgment he asked for [the one in a sum calculated to insure compliance or presage bankruptcy].
Five hours of impasse. Two minutes of candor. Sixty seconds to settle.
This is not the result of my work but of the Plaintiff's candor. All I did -- all many of us do -- is to refuse to give up until settlement appears hopeless to us and I guarantee you it always seems more hopeful to us than it does to counsel or the parties -- hours and hours more hopeful. Why? Because an offered release from the steel trap of litigation that is held out long enough will eventually be accepted, particularly where the choice is voluntary release or the continued effort to gnaw one's own leg off in an effort to escape.
The lesson? When one side speaks its own truth, the other side finally hears it.
What does this have to do with the Fourth of July? It has to do with overcoming the tyranny of another; with having the courage not only to visualize freedom, but to take bold action in the direction of its fulfillment. It has to do with the messy but boundless joy of self-rule, autonomy, and independence. It has to do with the courage required to give up hope that another will grant us the freedom we long for.
Happy July fourth and onward with our unlikely experiment with democratic rule coupled with the guarantee of liberty for those the majority might not so easily give it to.
Comments (3)
Read through and enter the discussion by using the form at the endAndrea Goldman - July 6, 2009 6:48 PM
Great post, and so true. I have seen this numerous times in mediation. I am at the point where I cut to the chase much sooner than I used to. Posturing only gets you so far.
Jeff Jury - July 7, 2009 6:37 AM
It seems the art of negotiation is undergoing a generational change. Think about how mediation presentations have changed over the past ten - twenty years.
Vickie - July 7, 2009 11:23 AM
Thanks for dropping by to comment Andrea and Jeff. I never had much of a mediation advocacy practice because my cases were 3-5 year 8-9 figure cases and my practice was single-case focused. So I'd mediate, say, every other year. Before THAT, when I was handling smaller cases, we didn't mediate AT ALL (I don't believe I hired a mediator until the mid-90s).
What I DO recall of mediation a decade ago is that: (a) I NEVER settled a case in mediation, no matter how prominent the mediator (former Cal. Supreme Court Justices for instance); (b) we treated mediation as if it were an arbitration -- presenting our "case" to the mediator as if he would "decide" in our favor and then change the other side's mind about the merits of their own case; and, and, (c) then we, the advocates, would more or less simply WAIT for the mediator to tell us whether our gambit worked.
So I'm no barometer of mediation "generational" changes. I remember settlement conferences with the Judges, shuttle-diplomacy affairs with the hammer of the Judge's opprobrium for not being more reasonable, but that was when I was TRYING cases; was READY for trial when we had the settlement conference and then actually TRIED the darn thing!
The shift I'm seeing now is an economic one. More than half my cases settle around economic issues ("I'm broke") with payment plans and stipulated judgments in the event of default. We're negotiating trust or playing chicken in most of those cases, i.e., is the defendant REALLY poised to declare bankruptcy? If the defendant is a corporate entity, are there alter ego claims? Is there any property that can be used to secure the promised instalment payments? Is it a question of either paying the attorney for trial and winning (at which point the defendant will be broke & the attorney will be paid SOMETHING) or paying the attorney for trial and losing (at which point the defendant will be forced into bankruptcy and its attorney will NOT be paid at all).
Defendants rarely bring financial documents to mediation (even when I suggest it): why give the plaintiff a road map to their assets in the event of trial and judgment? So the plaintiff rarely has good reason to believe claims of impecunity.
On those occasions when insurance is available, the claims representatives seem to be in a belt-tightening mode and appear to believe that juries "in these economic times" will not be generous with a defendants' money, feeling the pinch themselves and not foreseeing any bail out in their own futures. The plaintiffs think the juries will be more harsh with defendants "in these hard economic times" if they believe the defendants are evading accountability for their part in the Plaintiff's loss.
And yet so few cases actually go to trial that I often feel a compelling urgency to help the parties stop the litigation bleeding, along with any posturing, so that there are funds around to pay for the losses rather than the high-stakes game of chicken the litigation so often appears to be.
I HATE to say to ANYONE that "litigation is expensive; the process too slow; and the result uncertain" when, despite EVERYONE'S protests to the contrary, the main obstacle to settlement remains the gnawing sense on both sides that they're being "taken" (what's left of the hope for "justice" or "fairness" by the time most cases get to me).
The justice system should work with more precision -- quickly and inexpensively for the small cases; with efficient case management for the large ones. But it doesn't, of course, most of the time.
And finally, NO ONE is ever "right." Each side has only their own part of the story, which has been tended, polished, defended from harm and crafted to prove a point rather than to resolve the parties' mutual problem. It's frustrating for everyone concerned: parties, attorneys, mediator, but we haven't yet found a better way of proceeding.
Many cases these days put me in mind of a barn-raising. The losses (usually business, not personal injury losses in my practice) are of a type that neighbors might have pitched in to remedy in an earlier era, not expended money to hire experts to determine who's FAULT the smoldering barn is, but simply re-build the darn thing.
Oops. I allowed my comment to go on and on, expressing a mediator's frustrations rather than the issues both of you raise. But now that I've done it, best to leave it for whatever it's worth and get on with my day!